It seems that the first defendant had appealed to the
Labour Court against the arbitrator's decision. But the Labour Court had
dismissed that appeal. He had then filed an application for leave to appeal to
the Supreme Court.
At the time of the hearing before me that application was
still pending.
The first defendant's ...
It seems that the first defendant had appealed to the
Labour Court against the arbitrator's decision. But the Labour Court had
dismissed that appeal. He had then filed an application for leave to appeal to
the Supreme Court.
At the time of the hearing before me that application was
still pending.
The first defendant's argument, though, was that an appeal
to the Supreme Court against a decision of the Labour Court automatically
suspends that decision. As such, the Labour Court's upholding of the
arbitrator's decision ordering his dismissal from employment stood suspended.
Therefore, he could continue in office with the Harare Municipal Workers
Union….,.
Regarding the first defendant's alleged appeal to the
Supreme Court and the argument that the Labour Court's decision had
automatically been suspended, the plaintiffs challenged the defendants to
produce the evidence of such an appeal.
They contended that an application for leave to appeal was
not an appeal. Therefore, there had been no suspension of the Labour Court's
decision by the mere application for leave.
(ii) That first
defendant had appealed to the Supreme Court
At the close of argument, and seeing that the parties had
paid scant regard to the question of the effect of the first defendant's
alleged appeal to the Supreme Court against the decision of the Labour Court, I
directed the filing of supplementary submissions to deal solely and squarely
with the point. Interestingly, in their supplementary heads of arguments, counsel
have adopted diametrically opposed views. But most ironically, each one's
conclusion is the complete opposite of their own cases, and the direct support
of the other's!
Counsel for the plaintiffs gave the matter the most cursory
treatment in his brief supplementary heads. In this regard, I would like to
associate myself with the complaint by GILLESPIE J in Vengesai and Others v
Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) on the conduct of some legal
practitioners who do not carry out proper research. He said…,:
“I have to say that argument on the law, with appropriate
citation of all relevant cases, including adverse decisions, is as rare amongst
legal practitioners as are hens' teeth. Yet it is to counsel that a judge must
look for appropriate research and argument if he is to be able to give
judgments efficiently and correctly. It is that duty of him, who would
undertake the responsibility of an advocate, a duty owed both to the client and
the court, to do all relevant research and to present that research to the
court. A judge cannot be expected to undertake himself all the original
research in every case.”
From his research, counsel for the plaintiffs concluded
that an appeal to the Supreme Court automatically suspends the judgment of the
Labour Court appealed against, in line with the common law rule of practice.
Nonetheless, he persisted with his clients' case on the basis that there was no
appeal pending by the first defendant, but merely an application for leave to
appeal.
On the other hand, counsel for the defendants, in his more
elaborate and well-researched heads, concluded that an appeal to the Supreme
Court does not automatically suspend the Labour Court's judgment because the
common law rule of practice that has that effect only applies to superior
courts of inherent jurisdiction. He pointed out that in this jurisdiction there
have been divergent and conflicting views on this point.
The common law rule of practice in the superior courts is
that execution of a judgment appealed against is automatically suspended unless
leave to execute is granted:
See Wood NO v Edwards & Anor 1966 RLR 336 (G); Oliphant's
Tin 'B' Syndicate v de Jager 1912 AD 474;
Verkouteren v Savage 1919 AD 183; Malan v Tollekin 1931 CPD 214; Reid v
Godart 1938 AD 511; Levin v Felt and Tweeds Limited 1951 (1) 213; Geffen v
Strand Motors (Private) Limited 1962 (3) SA 62; South Cape Corporation (Pty)
Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534; Econet (Pvt)
Ltd v Telecel Zimbabwe (Pvt) Ltd 1998 (1) ZLR 149 (HC); Vengesai and Others v Zimbabwe Glass Industries Ltd 1998 (2) ZLR
593 (H); and Chematron Products (Pvt) Ltd v Tenda Transport (Pvt) Ltd &
Registrar of Deeds HH343-13.
In terms of that common law rule, the party that succeeds
in the court of first instance has to seek the leave of the court to execute
the judgment whilst the appeal is pending. In Levin v Felt and Tweeds Limited 1951
(1) 213 VAN WINSEN AJ explained the rule as follows…,:
“The common law is clear that a notice of appeal, save in
certain exceptional cases, automatically suspends the execution of the judgment
appealed against. No application is necessary to ensure this result. If the
party who succeeds in the judgment against which the notice of appeal has been
lodged wishes to execute upon the judgment, then it is he who is required to
make an application to do so.”
In South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd 1977 (3) SA 534…, CORBETT JA put it as follows:
“Whatever the true position may have been in the Dutch
courts, and more particularly the Court of Holland…, it is today the accepted
common law rule of practice in our court that generally the execution of a
judgment is automatically suspended upon the noting of an appeal…,. The purpose
of the rule is to prevent irreparable damage from being done to the intended
appellant.”
However, as counsel for the defendants noted on this point,
the structure and wording of the Labour Act is a cause of some confusion.
Section 92E is headed “Appeals
to the Labour Court generally.” Subsection (1) then provides that an appeal
“…, in terms of this Act…,”
may address the merits of the determination or decision appealed against. It
does not say an appeal “…., in terms of this
section…,.” It does not refer to other provisions dealing with appeals
to the Labour Court, for example, section 92D and section 98(10).
With regards to appeals to the Supreme Court, section 92F
of the Labour Act is headed “Appeals
against decisions of Labour Court.” Subsection (1) expressly provides for
appeals from the Labour Court to the Supreme Court, but only on questions of
law. The confusion may arise in that whilst it seems settled that an appeal
from the decision of an arbitrator to the Labour Court, in terms of section
98(10) of the Labour Act, is not suspended automatically because of the
provisions of section 92E, there is nothing expressly stated in respect of the
effect of noting an appeal from the Labour Court to the Supreme Court. Yet, section
92E(1) refers to appeals '…, in terms of
this Act.' This seems to suggest that any appeal whatsoever, to and
from wherever, does not automatically suspend the decision appealed against,
for as long as that appeal is one '…, in
terms of this Act.' An appeal from the decision of an arbitrator is
one '…, in terms of this Act…,.'
But so is an appeal from the Labour Court to the Supreme Court.
However, in my view, the reference in section 92E to “[a]n
appeal in terms of this Act…,”
does not include an appeal to the Supreme Court. It is a reference to appeals
to the Labour Court only. Section 92F of the Labour Act deals specifically and
expressly with appeals from the Labour Court to the Supreme Court but it does
not deal with the effect of such an appeal on the decision appealed against as
does section 92E.
Some decisions of this court have held the view that
section 92E(2) of the Labour Court expressly reversed the common law rule: see
Gaylord Baudi v Kenmark Builders (Private) Limited HH04-12; DHL International
Ltd v Madzikanda 2010 (1) ZLR 201 (H); Samudzimu v Dairibord Holdings Ltd 2010
(1) ZLR 357 (H); and Senele Dhlomo-Bhala v Lowveld Rhino Trust HH263-13.
In Dhlodhlo v Deputy Sheriff of Marondera HH76-11 and Mvududu
v Agricultural and Rural Development Authority 2011 (2) ZLR 449 (H) it was
accepted or assumed that in the absence of a legislative provision to the
contrary the common law rule applied in respect of appeals to the Labour Court.
Be that as it may, whatever confusion may arise on the
interpretation of section 92E and section 92F of the Labour Act, it seems
settled that the common law rule of practice only applies to the superior
courts of inherent jurisdiction. Contrary to the views in the earlier cases, it
seems that in section 92E(2) of the Labour Act, Parliament re-stated, rather
than reversed, the common law in regards to an inferior court such as the
Labour Court. In Associated Newspapers of Zimbabwe v Minister of State for
Information and Publicity & Ors 2005 (1) ZLR 222 (S)…,CHIDYAUSIKU CJ singled out the High Court
and the Supreme Court as the superior courts of inherent jurisdiction in this
country. He went on to say…,:
“Courts created by statute do not have inherent
jurisdiction and consequently do not have the power to order execution of their
judgment unless such jurisdiction is conferred on them by statute.”
The Labour Court is not a court of inherent jurisdiction.
It is a creature of statute. As such, and in my view, the aforesaid common law
rule does not apply to it. In Vengesai and Others v Zimbabwe Glass Industries
Ltd 1998 (2) ZLR 593 (H), GILLESPIE J stated…,:
“In my opinion, the dictum of CORBETT JA, cited above and
approved in the various judgments referred to, does not, and was not intended, to apply to a judgment of any court,
tribunal or authority other than a superior court of inherent jurisdiction.”…,.
In Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1)
ZLR 198 (S), GARWE JA quoted with approval…, the further remarks by GILLEPSIE J
in Vengesai and Others v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H) as
follows:
“In Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998
(2) ZLR 593 (H), GILLESPIE J, after considering a number of earlier decisions
on the matter, remarked at p 598E – F:
'In stating the common law, CORBETT JA referred to the
automatic stay of execution upon the noting of (an) appeal, as a rule of practice.
That is not a firm rule of law, but a long established practice regarded as
generally binding subject to the court's discretion. The concept of a rule of practice is peculiarly appropriate only to
superior courts of inherent jurisdiction. Any other court, tribunal or
authority is a creature of statute and bound by the four corners of its
enabling legislation.'
The learned judge continued at p 599A – D:
'…, the grant or withholding of a stay of execution is, at
common law, a matter of discretion reserved to a court in which such a
discretion is imposed. It follows that, in the absence of any statute
specifically conferring such a discretion on an inferior tribunal or authority,
or otherwise regulating the question of enforcement of judgments pending an
appeal from that authority, no such discretion can exist. Such a court or
authority can exercise only the powers conferred by statute. It cannot order
the suspension of its own judgment pending an appeal. It has no discretion to
enforce its own judgment, notwithstanding an appeal. The only basis upon which
its judgment or order can be supposed to be stayed is where its enabling
statute provides for the situation.
…, the grant, whether automatic or not, of a stay of
execution of a judgment pending appeal is an inseparable part of an exercise of
discretion by the court from which the appeal lies, to order the enforcement of
its judgment notwithstanding the appeal or any temporary stay. It follows that the question of
enforcement pending appeal of judgments from an inferior court or authority
cannot possibly be regulated according to a rule of practice, derived from the
common law, and applicable in superior courts of inherent jurisdiction.'”…,.
Thus, in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008
(1) ZLR 198 (S), the Supreme Court, on the basis that the common law rule of
practice applies to the superior courts of inherent jurisdiction only, reversed
the judgment of this court that had held that the decision of the Rent Board, a
quasi-judicial body established in terms of the Housing and Building Act [Chapter
22:07] had automatically been suspended by an appeal against that decision to
the Administrative Court. At p 206A –B, the Supreme Court said;
“The position may now be accepted as settled in this jurisdiction
that, unless empowered by law to do so, an inferior court or tribunal or other
authority has no power to order the suspension of its own orders or judgments and, further, that the noting of an
appeal against the judgment or order of such a court, tribunal or other
authority, in the absence of statutory provision to that effect, does not have
the effect of suspending the operation of the judgment or order that is sought
to be appealed against.”…,.
It follows that whatever may have been the intention of the
Legislature in crafting sections 92E and 92F of the Labour Act, the common law
rule of practice that has the effect of automatically suspending the decision
appealed against, does not apply in respect of the Labour Court because it is
not a superior court of inherent jurisdiction. Although the remarks of the
learned CHIEF JUSTICE, in Associated Newspapers of Zimbabwe v Minister of State
for Information and Publicity & Ors 2005 (1) ZLR 222 (S), were made in
relation to a matter that had been determined by the Administrative Court,
GARWE JA, in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) ZLR 198 (S),
pointed out that…, they apply with equal force to judgments and orders made by
all inferior courts and tribunals.
In the Labour Act, section 92E(3) empowers the Labour Court
to make interim determinations pending the determination of an appeal that is
pending before it.
Counsel for the defendants submitted that in practice, the
provision has been employed to regulate the execution of judgments of those
bodies or authorities inferior to it, such as arbitrators.
That may be the position. But there is no corresponding
provision in section 92F. That seems to fortify the view that the Labour Court
has no power or discretion to order a stay or to authorise execution of its
decision where it has been appealed against, and that the common law rule of
practice does not apply to it. But, as GILLESPIE J noted in Vengesai and Others
v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, an aggrieved party who desires a stay of execution, or execution
pending appeal, is not without a remedy. He can approach this court for
appropriate interim relief, or, in my view, the Supreme Court where the appeal
will be pending.
Coming back to the first defendant's situation with regards
the status of his appeal to the Supreme Court, it seems that all that was
pending at the Labour Court was his application for leave to appeal - not the
actual appeal itself. I have gathered from the papers in the court record that
such leave was applied for on 22 January 2014. I heard argument in this case on
23 October 2014. The parties filed their supplementary heads of argument on 10
and 12 November 2014. There was no indication as to the fate of the leave
application. Despite that, counsel for the defendants had originally argued
that the leave application had the same status as the actual appeal, namely,
that it had automatically suspended the decision of the Labour Court, because
it is a necessary step in the noting of an appeal.
Given the conclusion that I have arrived at
above, namely, that an appeal to the Supreme Court does not automatically
suspend the Labour Court's decision that has been appealed against, and given counsel
for the defendants concession in his supplementary heads of argument, it
follows that his earlier argument that the leave to appeal was on the same
footing as the substantive appeal automatically falls away.
